Dispatch from GMTO: Al-Nashiri Military Commission Hearing

Al-Nashiri Military Commission: ‘The Man Behind the Curtain’ Turns Defense Counsel Into Cornered Huddled Masses; Prosecution says: ‘Al-Nashiri’s Incompetent to Stand Trial; Now Let’s Continue With the Trial’ 

This post is the product of research fellow Sean Kennedy’s observations at last week’s al-Nashiri hearings at Guantanamo Bay.  

In the first of what was supposed to be four days of hearings in Guantanamo in the case against Abd al-Rahim al-Nashiri—the alleged mastermind behind the U.S.S. Cole bombing—the commissions came to a screeching halt.

Judge James Pohl granted the prosecution’s motion to examine the mental capacity of al-Nashiri and all other scheduled motions for the proceedings were held in abeyance until a determination on al-Nashiri’s capacity was finalized.

The courtroom atmosphere was contentious throughout the duration of the proceedings with what might be termed bickering between both sides and Judge Pohl.

In total, two motions were heard before Judge Pohl affirmed the prosecution’s motion on al-Nashiri’s mental capacity and effectively quashed the hearing until a yet be determined date.

Having said that, the hearing was not without drama.


AE 149 – Motion to Investigate the Ability of Third Party Monitoring of Attorney/Client information.


The morning began with a hearing on a last minute motion filed by the defense on Friday, February 1, 2013, in response to last week’s unsettling revelation that outside governmental agencies could listen to the proceedings remotely, and “close down” the the court without the Judge’s knowledge or permission.

The prosecution elected not to draft a written response to the motion, instead opting to respond on the record.  Defense counsel, Commander Steven Reyes, argued that because of this undisclosed monitoring by outside agencies, the defense’s ability to have privileged conversations with their client was impaired and thereby they would not be able to provide effective representation. In addition, the defense argued that further discovery would be necessary to determine whether or not this same kind of remote monitoring system was in place in the holding areas outside of the courtroom and in the attorney conference room on the far side of the island where meetings with the detainees take place.

In response, Mr. Anthony Mattivi, the U.S. attorney representing the prosecution, claimed that the defense was attempting to switch the burden and place it on the government while offering no evidence that any monitoring could take place outside of the courtroom. The prosecution attacked the lack of factual support in the defense’s brief for its claims and stated that the defense was conflating two separate issues. Finally, Mr. Mattivi criticized the defendant’s proposed remedy of shutting down the proceedings to conduct an investigation into the monitoring by stating, “I don’t quite understand how that would work from a legal perspective.”

Judge Pohl was quick to push Commander Reyes about the lack of evidence to support a claim that conversations could be monitored in the holding cells outside the courtroom or in the attorney meeting rooms by the prison. The defense claimed that the events of last week were proof positive of this capability and should be more than enough to overcome its burden of proof and persuasion. The protracted dialogue between Lt. Commander Reyes and Judge Pohl became increasingly heated as the commission wore on, with Judge Pohl contentiously asking, “Does it surprise you that the government can monitor conversations across the world?”

The Judge denied the motion, ruling that the defense did not proffer enough evidence to carry the burden but made note that if evidence did arise it would require serious and significant remedies. However, after the motion was denied, Commander Reyes requested a 3-hour recess to contact ethics specialists to ensure that the defense would not be violating any ethical obligations by continuing the representation in light of the specter of remote monitoring of attorney client conversations.

In addition the defense wanted to speak with the individuals that oversee the courtroom’s technology to determine what, if anything, could be done. Judge Pohl initially took issue with the request and expressed concern that defense was attempting to sua sponte overturn his ruling on the motion. After a prolonged exchange, the Judge granted a one-time exception, allowing this recess to give defense counsel the opportunity to confirm that it was not violating any ethical obligations under the circumstances.

During the break, the defense counsel told the court it learned that third parties could monitor conversations on any microphone inside the courtroom. However, there was no evidence that any audio recordings could be taken from the holding cells outside the courtroom. Interestingly, there was no clear answer with regard to the Attorney meeting room, a revelation that presented great pause for the defense.  Judge Pohl emphasized that he would not order an attorney to act in a manner that violates an ethical obligation and said that he understood the defense’s concerns. He reiterated that the current situation did not pose such an ethical issue. Defense counsel had consulted with their ethics counselor and indicated they were ready to proceed. However, as the day would prove, the government would shortly take the position that ultimately forced this entire proceeding into an indeterminate hiatus.

Additionally, an agreement was set up with the prosecution to speak to various technical operators at the detention center to address the remaining confidentiality concerns. However, due to what was said to be the monitoring capabilities from the microphones throughout the court room, defense counsel huddled in a corner of the court room on several occasions in order to confer privately, outside the range of the microphones and what defense counsel referred to as “The Man Behind the Curtain (perhaps having read my colleague, Adam Kirchner’s, report in The Public Record on the KSM hearing). While the motions continued, the “Man Behind the Curtain” is, as of yet, still unidentified, and seemingly poses significant obstacles for the defense going forward.


AE 99D—Government Motion for Commissions to Discuss with the Accused Matter Considered by the Commission During the 18-19 July 2012 and 23 October 2012 Sessions.

The next motion before the Commission involved the prosecution’s request to clarify a waiver of appearance by al-Nashiri for the above-mentioned dates. The prosecution argued that the law has now changed– allowing a detainee to waive his right to appear in the beginning of a particular session while still maintaining the ability to change his mind and appear in the session later in the day. Previously, when a detainee waived the right to appear, the waiver was in force for the full day. The prosecution argued that because of this change the record needed to be clarified and, if necessary, al-Nashiri would need to briefly speak in open court.

The defense countered by asking the court for the ability to investigate underlying facts in any statement  al-Nashiri may make on the record if he is required to speak. The defense argued that the investigation would occur for the sole purpose of providing context to these future statements so that they could not be used as evidence against al-Nashiri’s mental competence. Commander Reyes pointed out that the uninvestigated statements made by al-Nashiri were the basis for the prosecution’s current motion to exam his mental capacity to stand trial. Judge Pohl reserved his decision on this issue pending the result of the upcoming motion.


AE—140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706


The third motion of the day had the potential to stop all litigation in the case dead in its tracks. In an unusual twist, the prosecution was petitioning for an investigation into the mental state of al-Nashiri in order to determine whether or not he is able to understand and assist in his own defense. Judge Pohl asked the prosecution if they understood that a grant of this motion would put the case on hiatus until the examination was concluded. Mr. Mattivi acknowledged that he understood; however, his answer would change immediately after the Judge made his ruling.

If granted, the 706 motion would allow the Judge to have a board of medical professionals appointed in order conduct the examination of al-Nashiri to determine if he is competent to understand the trial and assist in his own defense. CDR Andrea Lockhart argued that this examination was necessary because of the defense’s assertion that al-Nashiri suffers from PTSD, as well as statements made by al-Nashiri during a previous session where he waived his right to appear. She further stated that the board that was appointed would be independent from the prosecution or the defense.

Defense counsel Richard Kammen—sporting a symbolic Kangaroo pin on his lapel—countered by acknowledging that al-Nashiri has PTSD related to torture committed against him in a CIA black site, but that his competency has never been in question. The defense expressed concern that the information recorded during the examination would be discoverable by the prosecution in the event that a death penalty hearing becomes necessary. Judge Pohl explained that the defense “holds the keys to the car” regarding the report and that it will not be discoverable by the prosecution unless the defense puts it at issue in the trial. In addition, Mr. Kammen was doubtful that the board would be independent and feared the appointment of “hacks.” Finally, the defense requested the Judge to hear from Dr. Iacopino, who is an expert in the area of torture related PTSD victims, for guidance regarding who should be selected for the medical board if the motion was granted.

Ultimately, Judge Pohl granted the government’s request for the 706 inquiry and with that, further progress in the case was stopped. However, after the Judge’s ruling, Mr. Mattivi posited that the court should continue to hear the pre-trial motions because there was an “assumption of competency” relating to a 706 hearing, despite his previous acknowledgment on the record that this decision would effectively pause the trial. Commander Reyes countered by stating that the presumption is only applied to the hearing that occurs after the 706 motion and that it would not make sense to continue if the prosecution believes Nashiri to be incompetent— as they claim. The Judge agreed with Reyes and set up a tentative schedule for the board to examine Nashiri in approximately 6 weeks.

Mr. Mattivi’s final attempt to continue with the trial was telling. Arguably, the prosecution was attempting to pre-empt any mental capacity challenge made by the defense at a latter date by forcing al-Nashiri to undergo a competency test before the trial starts. It was unusual that the prosecution pushed for a motion that could potentially cause its entire case dismissed if al-Nashiri is found incompetent. However, Mr. Mattivi’s attempt to have the case continue after this motion was granted begs the question of how much the government actually believes it own claim regarding incompetence.


AE 135 – Defense’s Motion to Allow Dr. Crosby to Examine Nashiri without Shackles and not in the Presence of Guards


The final motion for the day involved a pre-arranged medical examination scheduled by the defense. Dr. Sandra Crosby was scheduled to examine al-Nashiri for physical signs of abuse relating to the torture committed by the CIA. The Judge asked Commander Reyes if the session would be observed by video, if there would be guards present outside the examination room, and if Dr. Crosby is willing to sign a waiver. Commander Reyes answered all of the questions in the affirmative. The prosecution, represented by Major Chris Ruge, argued that the shackles and guard presence was a reasonable safety measure that was requested by the JTF facility commander. Judge Pohl dismissed the prosecution’s argument and stated that this was a medical professional approved by the Convening Authority and that the defense request falls within the gambit of reasonable safety measures.

With that the session—and the case—was called to a close. The only item left on the agenda was an interview to take place the following day with the defense’s medical expert Dr. Iacopino. What was supposed to be four days of substantive motion hearings was reduced to a single day with a 3-hour recess. At the conclusion, many of the same issues are outstanding. The “Man Behind the Curtain” remains unknown and can still seemingly monitor the proceedings—and potential attorney client interviews—from a remote location. Further, the prosecution successfully stopped its own case from proceeding forward to trial. While this may seem like an unusual day in court, as Mr. Kammen articulated to the Judge, “Your Honor, it’s GTMO.”


Sean Kennedy is a student at Seton Hall University School of Law. He is also a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law.

This Week at GTMO: al-Nashiri Hearings

This week, from February 4-7, Judge Pohl will hear motions relating to the charges against al-Nashiri.  The most current docketing order for this week’s hearings was posted on January 14th (motions to amend this order have since been filed by both parties, but the outcome is not publicly available), and states the following motions (in this order) will be addressed this week:

a. AE 045 Government Motion for a Scheduling Order

b. AE 099D Government Motion for the Commission to Discuss with the Accused Matters

Considered by the Commission During the 18~19 July 2012 and 23 October 2012 Sessions

c. AE 107 Defense Motion to Compel the Convening Authority to Fund Two Individuals to

Act as Defense-Initiated Victim/Survivor Outreach (DIVO) Liaison (plus witness production issue

c. AE 114 Defense Motion to Find that RM.C. 703(c) violates 10 V.S.C 949j.(a)( ) and Mr. al Nashiri’s Constitutional and Statutory Rights to due process

f. AE 118 Defense Motion to Cease the Use of Belly Chains on the Accused by JTF~GTMO

g. AE 120 Defense Motion to Compel Discovery of Information in the Possession of any Foreign Government and the United States related to the Arrest, Detention, and Interrogation of Mr. al Nashiri (Classified)

h. AE 131 Defense Motion to Compel Production of Representative of the OCA to Testify at the Hearing on AE I12

i. AE 140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706

j. AE 141 Defense Motion to Compel Discovery of the Prosecution’s Prudential Search Requests

k. AE 142 Defense Motion to prevent Mr. Al4Nashiri from Being Removed from the Courtroom During a Closed Session

I. AE 143 Defense Motion to Compel a Copy of A ll Discovery Provided to Habeas Counsel

m. AE 144 Motion to Compel Discovery in the Possession of the United States Attorney for the Southern District of New York Demonstrating the Guilt of Fahd Mohammed Ahmed al~Quso and Jamal Ahmed Mohammad Ali al~Badawi Relating to the Present Charges

n. AE 145 Motion for the Commission to Consider the Defense Request for Expert Assistance III Camera al1d Ex Parte and to Compel the Convening Authority to Approve Funding the Expert as a Defense Consultant

o. AE 146 Motion for the Commission to Consider a Second Defense Request for Expert Assistance 111 Camera al1d Ex Parte and to Compel the Convening Authority to Approve Funding the Expert as a Defense Consultant

For more information on what specifically will be addressed, you can check the government’s website, http://www.mc.mil/CASES/MilitaryCommissions.aspx.  Simply enter al-Nashiri’s name, and  find the corresponding filing code (ex: AE 146) to read the parties’ detailed motions.  Feel free to leave a comment if there is a specific motion you would like to see the Center’s Fellows discuss further on the blog this week.

As you can see by the sheer volume of motions to be addressed this week, it will be an eventful few days.  Check back periodically for reports from our student observer, Sean Kennedy, who will be at GTMO observing this week’s hearings.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

Only the Judge is in Control, Except When He Isn’t

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his experiences as an observer, was featured in “The Public Record” today:  

The Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., resumed on Tuesday after adjourning on Monday. As expected, all of the accused waived their right to appear at their own hearings, with co-defendant Walid bin Attash’s criticism of the trial’s process still echoing from the day before. Bin Attash had described the process, given the detainees’ inability to communicate with their attorneys without the government listening in, as undermining  the establishment of trust in the  attorney-client relationship— and the legitimacy of the hearing itself. . Bin Attash, Khalid Sheikh Mohammed, and three other co-defendants, are charged with violations of the Military Commission Act of 2009 for their alleged roles in the preparation for the 9/11 terrorist attacks.

Only the Judge is in Control, Except on Monday

Immediately following the issue of the non-present defendants, Presiding Judge James Pohl addressed the pressing question of who, exactly, is in control of his courtroom. In Monday’s hearing, all but the prosecution were surprised when the audio feed to the gallery of press, NGOs and the families of 9/11 victims suddenly halted when defense counsel for KSM uttered the title of a motion pertaining to his client’s detention at a CIA sponsored black-site prison— a matter of public record. Judge Pohl reaffirmed that, even though a court security officer has instructions about what topics are to be censored, only the presiding judge has the authority to close (i.e., censor) the courtroom. Furthermore, Judge Pohl noted that the comment that resulted in the censorship “is not a valid basis for the court to have been closed.”

Judge Pohl then attempted to resolve— on the record— the defense’s concern  regarding who has access to audio feeds from the courtroom. He explained that there are two audio feeds. One feed never is censored and is transmitted only to the court reporter. The other feed – the feed in question during Monday’s prolonged censorship – is buffered with a 40-second delay, which allows the aforementioned court security officer time to sever the feed before it reaches the gallery or remote-viewing locations. “The purpose of the 40-second delay,” in Judge Pohl’s words is, “to prevent spillage of classified information.”

It Was Not A 40-Second Delay

James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, quickly brought to the commission’s attention that Monday’s actual events seem inconsistent with characterizing the censorship episode as an accidental 40-second delay glitch. “[T]here was a little bit of a delay; it wasn’t a 40-second delay,” Mr. Harrington said. “That is not what happened. The light went off in a time much shorter than 40 seconds.”

Judge Pohl stopped Mr. Harrington’s line of argument at that point, out of concern that it risked “sliding into an area we shouldn’t talk [about] in open court.” Counsel for both parties and Judge Pohl had discussed these issues in a closed session Monday afternoon. Elsewhere, Judge Pohl identified the crux of this and similar debates about the process of the hearings and access to information: “we are getting into a line between what is public and what is security.”

Judge Pohl: The United States Must Comply With Its Own Regulation

While it may seem that Judge Pohl shifted quickly from preserving access to information during the  hearings, to cautioning defense counsel about divulging information to which the public wants access, the issue resurfaced later during Tuesday’s proceedings. Judge Pohl ultimately held in favor of some procedural transparency, granting the defense’s motion to release redacted versions of classified pleadings.

James Connell, Learned Counsel for co-defendant Ammar al-Baluchi, illustrated for the commission that many documents in the case have remained entirely unavailable to the public for more than three months, some approaching half a year, despite the Government’s practice of releasing sanitized versions with sensitive information redacted.

Sterling Thomas, an Air Force Lieutenant Colonel and detailed defense counsel to al-Baluchi, further argued for the availability of documents, noting that the very slogan appearing on the Military Commission’s website would seem to promote intrinsic notions underlying the pursuit of justice:

“Your Honor, if you were to click on the Office of Military Commission website, you’re immediately greeted with the banner of fairness, transparency, and justice. And if one were a cynic, Your Honor, one might say that these words are merely window dressing. But yet, Your Honor, I think that it’s important to note that those words are there and that obviously the government understands that that’s an important principle…. But, Your Honor, the frustration continues to build as a result of delays in the – in having openness, in having transparence. And I think it was evident as recently as yesterday when our client made some statements about his frustration with the lack of what he sees as openness and transparence. And, Your Honor, I think that equally you could say the American people are also frustrated by a lack of openness and transparence. With those things in mind, Your Honor, I just want to emphasize that we think it’s critically important that whenever possible the pleadings, orders by the commission that are not classified, that these things be made available to the public so that they can inform themselves and educate themselves about this trial.

Against the points made by the defense counselors, Navy Lieutenant Kiersten Korczynski, assistant trial counsel for the United States, argued little more than that the defense is required by the Military Commission Rules to file documents, that are not certainly unclassified, directly to the judge rather than through the ordinary docketing process.

The relevant regulation (RTMC 17-1(c)(1)) is designed to preserve the judge’s control over the release of trial-related information. If the United States wants to prevent the defense’s documents from being released, the prosecution must petition the judge to do so. Likewise, if the defense wants to compel the release of their documents, it must petition the judge to do so.

Finding that the Military Commission Rules already provide the remedy that, if followed, would preclude the United States from indefinitely detaining unclassified information, Judge Pohl held essentially that the United States must comply with its own regulation.

The hearing adjourned until Wednesday, to determine if the defense will be prepared on Thursday to argue a number of outstanding motions to compel the production of witnesses. The United States has refused to produce many defense witnesses for the case, arguing that the defense has not explained how the witnesses are relevant or necessary to the issues.

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law


The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And “Who is Controlling These Proceedings?”

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his first day as an observer, was featured in “The Public Record” on January 28th.  

The KSM Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., reconvened on Monday for the second session of pre-trial motion hearings. The first session of these hearings, held in October, 2012, devolved into what many referred to as “a circus.” The opening session of this week’s hearings produced several tense moments, including a proverbial “Man Behind the Curtain” incident (as Presiding Judge James Pohl’s control of the proceedings was superseded by some, in his words, “external body”); the hotly contested issue of the United States obstructing defense attorneys’ access to their clients arose;  the debate over whether defense attorneys are truly free to communicate with their clients waged on; and, in their own words, the detainees offered the reasons why they choose to waive their rights to be present during the hearings.

The principal defendant, Khalid Sheikh Mohammed, and his four co-defendants are each accused of eight distinct changes under the Military Commission of 2009, for their roles in the terrorist attacks of 9/11. The charges against the accused are: Conspiracy, Attacking Civilians, Attacking Civilian Objects, Intentionally Causing Serious Bodily Injury, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking an Aircraft, and Terrorism.

In a briefing on Sunday, Chief Prosecutor Brigadier General Mark Martins addressed the suggestion that the recent detainee victory in Hamdan II from the D.C. Circuit would nullify the Conspiracy charges in this case as well. Prosecutor Martins stated that he would proceed in this case, assuming that he will be directed to push forward and argue the merits of the Conspiracy charge, despite the decision in Hamdan II. The strategy would make sense in the event the Hamdan II decision is appealed to the Supreme Court.

In the case at hand, the decisions made by the Judge,  Colonel James Pohl, in this phase of the commission  will ultimately affect the evidence that can be discussed, and the procedure of the commision on the merits once all pre-trial motion hearings have been concluded.

The Prosecution alleges that Khalid Sheikh Mohammed was the “architect of the 9/11 concept” in its motion designed to exclude from the trial information that it asserts could compromise the United States’ national security. See Government Motion to Protect Against Disclosure of National Security Information, AE013, page 3. Elaborating on the claim that Mohammed was the “architect of the 9/11 concept,” the Prosecution charges that he conceived of and oversaw the preparation for the 9/11 attacks. Co-defendant Walid bin Attash’s alleged role in the 9/11 attacks was developing the method by which the hijackers smuggled weapons aboard the airplanes, in addition to training the hijackers in hand-to-hand combat. Following co-defendant Ramzi Binalshibh’s denied entry into the United States, his alleged role in the 9/11 attacks was to be the liaison between the chief hijackers and Khalid Sheikh Mohammed. Co-defendant Ammar al-Baluchi’s alleged role in the 9/11 attacks included financial coordination of the hijackers, in addition to procuring a cockpit operations video and flight simulator for the hijackers’ training. Co-defendant Mustafa al-Hawsawi’s alleged role in the 9/11 attacks was financial coordination of the hijackers. Al-Hawsawi’s actions allegedly included draining the hijackers’ bank accounts on the day of the attacks.

Who is the Man Behind the Curtain?

Static filled the gallery’s speakers, and the large video screens which displayed the 40-second-delayed proceedings went blank— to prevent lip-reading— while a red light flashed at the right-hand side of Judge Pohl’s desk. Observation of the hearing was shut down.

As soon as the audio and visual feeds resumed and the flashing light shut off, Judge Pohl expressed two immediate question/concerns: Who ordered the audio/visual feeds to be censored, because it was not on his authority and why were the feeds censored when Learned Counsel for Khalid Sheikh Mohammed, David Nevin, had been discussing theunclassified portion of the Joint Defense Motion to Preserve Evidence of Any Existing Detention Facility? After resuming control of what information would appear on the record, Judge Pohl emphasized his concern that an “external body” is superseding his authority, remarking that it was if “if some external body is turning the commission off.”

Nevin, on behalf of Khalid Sheikh Mohammed, echoed Judge Pohl’s concerns and asked: “Who is controlling these proceedings?”

Learned Counsel for Walid bin Attash, Cheryl Bormann, emphasized  that the mere mention of a motion that contained some classified information seemed to trigger the censorship..

Defense Counsel for Mustafa al-Hawsawi, Navy Commander Walter Ruiz, raised an even more worrisome implication:  If an external body above Judge Pohl’s authority is censoring the audio/visual feeds, that same external body might also be eavesdropping on the defense teams’ communication during the proceedings even when they are not addressing the court. After all, the courtroom is filled with microphones.

Only the Prosecution did not look surprised when the curtain of silence fell upon the courtroom, and they would not discuss what they knew in public.

Counsel discussed these issues in a closed session Monday afternoon, originally slated to deliberate the Military Commission’s Rule 505, which states that an established attorney-client relationship can only be severed for good cause, by the request of the accused, or upon application for withdrawal by counsel. Rule 505 became a pressing issue early in Monday’s session because former-Detailed Defense Counsel for Walid bin Attash, Marine Major William Hennessey, suddenly withdrew from representing his client. Bormann expressed bin Attash’s wish to sever the relationship. However, Judge Pohl stressed the importance of clients themselves, not their counsel or proxies, controlling the severance of an attorney-client relationship when good cause has not been shown, as is the instant issue.

A Case in Point: Denial of Attorney Access to Clients

Before Judge Pohl heard any motions for the day, Ms. Bormann addressed a prevailing issue throughout her representation of Walid bin Attash during the past year: the United States, she argued, obstructs defense counsels’ access to their clients. Bormann and her co-counsel for bin Attash attempted to meet with their client in private at around 8:15, shortly before the proceedings. Bin Attash was present; however, Bormann and her co-counsel were denied any access to their client until he was brought to the courtroom under guard. Bormann argued that today’s barrier to accessing her client was a case in point, following along the lines of other instances of impeded attorney-client access.

Are Defense Attorneys Truly Free to Communicate with Their Clients?

Amidst vocal reactions from the gallery behind the glass, Ms. Bormann  told Judge Pohl, “You don’t live my life.”

Many of the families of 9/11 attack victims present did not, understandably, commiserate with Ms. Bormann. However, Bormann made her remark in the context of her ethical dilemma as an attorney whose attorney-client communication is seized for review by the United States. Ms. Bormann made the point, essentially, that she has not been truly free to communicate with her client since October 2011, thereby depriving her client of her ability to provide a fully informed defense against the charges against him.

Why the Accused Waive Their Rights to Be Present During the Hearings

Cheryl Bormann’s zealous advocacy for her client, Walid bin Attash, was matched in part by her client’s own level of engagement during the proceedings. Bin Attash, with a long, black beard, a head scarf, and a white tunic covered by a camouflage vest, spent much of the proceedings pouring over binders of information through thick, black glasses. Bin Attash made many notes and communicated often throughout the day with his co-defendants.

Anticipating that the accused would abstain from appearing in further sessions this week, Monday’s session concluded with Judge Pohl requiring the accused to answer whether they understood their right to appear at their hearings, and whether they had any questions for him about their rights. All of the accused answered in Arabic, through a translator, that they understood their right to appear at the hearings. But only Walid bin Attash took the opportunity to discuss why the accused, in their own words, waive their rights to be present during their hearings. Bin Attash, a Yemeni, explained excitedly in Arabic that the hearings’ process gives the accused no incentive to appear in court. The accused have been unable to develop trust in their attorneys despite a relationship lasting over a year. Bin Attash clarified that he and his co-defendants do not want this to be a “personal issue” with Judge Pohl. Bin Attash closed his comments by declaring that the Prosecution does not want the accused to hear or understand anything (presumably in reference to their rights and their waivers to appear at the hearings). Bin Attash:

“We have no motivation to come to court. We have been dealing with our attorneys for a year and a half, and we have not been able to build trust with them. Their hands are bound. The prosecution does not what us to hear or understand or say anything. They don’t want our attorneys to do anything.”

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law

Update re: AV censorship at Monday’s hearing

After yesterday’s censorship of the courtroom proceedings at GTMO, it was rumored that the issue would be addressed at a press conference this morning.

Instead, however, Judge Pohl declined to explain the incident, stating that it was not a discussion that was appropriate for open court.  He explained that a “security officer” is responsible for cutting of the audiovisual feed, but did not explain where this officer is located or why someone outside of the courtroom has the authority to censor the proceedings.

It will be interesting to follow this story as it unfolds, but for now, censorship in the courtroom remains just one of the many closely-guarded secrets at Guantanamo.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research


Censorship Episode During Today’s KSM Hearings Reveal New GTMO Secret

By now, those who follow Guantanamo-related news closely are aware of today’s censorship episode during the military commission hearing for Khalid Sheikh Mohammed (KSM).

During military commission hearings, journalists and observers are seated outside of the courtroom.  They can watch the hearings as they happen, but the sound is delivered via an audiovisual feed, which has customarily had about a 60-second delay.

Today, however, an unknown government censor abruptly shut off the audiovisual feed as David Nevin, counsel to KSM, began his request for information on the case, igniting frustration in the courtroom.   Until today, no one, including Judge Pohl and the defense attorneys, knew that the feed could be cut off by someone outside of the courtroom.  The feed is usually cut off by a security officer in the court or the judge, and typically everyone in the courtroom is aware of what is happening.

The action today generated a buzz on twitter amongst journalists present at the hearing.  Charlie Savage (@Charlie_Savage) said that the switch was hit after the attorney simply read the title of his own, unclassified brief.  Many others, like John Knefel (@johnknefel) indicated the surprise of Judge Pohl, and were surprised to find that even Judge Pohl didn’t know who hit the censorship switch.  Knefel tweeted,

“Let today’s censorship episode sink in. Gov official cut feed. When it returned, judge was furious & confused abt why it happened.”

It is rumored that the censorship issue will be addressed at a press conference in the morning, but until then, it certainly brings to light some interesting questions about the secrecy surrounding Guantanamo.

Who is really in control of the courtroom, if its not Judge Pohl? Why did the government feel the need to censor Nevins’ opening statements? As it turns out, there is even more secrecy surrounding Guantanamo than even those who appear to be closest to the action could imagine.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research